ArtsWatch: Anti-ACTA In The Streets

On Feb. 11 thousands of protestors in Europe expressed their opposition to the Anti-Counterfeiting Trade Agreement through extensive street protests. Billboard.biz estimated a total of 60,000 protestors in 50 German cities, with 10,000 in Berlin and 6,000 in Munich. Reuters estimated 4,000 in Sofia, the capital of Bulgaria, and cited tallies of 1,000 or more for the cities of Budapest, Hungary; Paris; Prague; and even Cluj, Transylvania, with smaller protests in many more cities, including Bucharest, Romania; Vilnius, Lithuania; and Warsaw, Poland. The following day European Parliament President Martin Schulz expressed his opposition to the agreement on German television. Bulgaria, the Czech Republic, Germany, and Poland now plan to delay signing ACTA. ArtsWatch recently described digital rights groups' hopes for a high level of public engagement, pressuring politicians to block stricter rules for online antipiracy enforcement. While this turnout for street protests is impressive, activists have an even longer road ahead as blocking ACTA's formal adoption may not be enough to stop it. The substantive core of ACTA is legislating stricter intellectual property protections and following up with tougher law enforcement and international coordination. Progress in these areas is likely to continue regardless of what happens to the formal agreement.

The International Intellectual Property Alliance submitted its Special 301 recommendations to the U.S. Trade Representative on Feb. 10, identifying U.S. trade partners with inadequate protections for intellectual property. China and Russia maintain their presence on the proposed priority watch list, and Canada retains its more recently earned place alongside them, joined by Argentina, Chile, Costa Rica, India, Indonesia, Thailand, and Ukraine. In spite of dramatic efforts in many of these countries to crack down on piracy, too little seems to change from year to year. IIPA saluted Spain for having passed stricter legislation with its Law on the Sustainable Economy, also known as the Sinde Law. Welcoming this year's recommendations, but reflecting on the frustrating lack of more substantial progress, Neil Turkewitz, RIAA executive vice president of international said, "It is fair to say that no country, including the United States, has found the right mix of tools to sustain an online environment that is not deeply affected by the unfair competition posed by the broad availability of stolen content. But this must serve as an invitation to action and creative solutions, not an excuse for inaction that imperils creativity and cultural diversity." This year the American Association of Independent Music also filed comments, requesting special help from the government given smaller labels' inability to mount a vigorous effort to protect themselves from global Internet piracy.

The effective implementation date for Spain's Sinde Law is March 1, but that might be delayed because on Feb. 8 Spain's Supreme Court accepted a legal challenge to the law's constitutionality and is giving quick consideration to a possible injunction against the law's implementation. Separately, a Spanish court was unwilling to find popular website Cinetube.es, which provides links to infringing material, guilty of infringement because the linked-to Web addresses were all publicly available. The court's ruling said, "all content has been exclusively found [on] public Internet sites, which makes this content of free distribution. No law prohibits distribution of free content and thus this [website] doesn't violate any law."

Attorneys for EMI Music and ReDigi appeared in the Southern District of New York's U.S. District Court on Feb. 6, arguing the label's request for an injunction to stop the used MP3-marketplace from operating. Judge Richard J. Sullivan denied the motion, suggested that summary judgment was still premature, and gave the parties until Feb. 20 to submit a case management plan to move discovery forward. "I find this a fascinating issue," said Sullivan. The defendant's technology is designed so that ReDigi's counsel can argue, "ReDigi's site cannot be used for copyright infringement," but EMI's attorney maintains, "you can't subdivide what they're doing," and "if the copy was made for the purpose of distributing it, it's not lawfully made." Existing statutes and case law predate this new question of digital first-sale doctrine. The new innovations of the technology were designed so that each separate step would arguably be legal. The judge denied EMI's motion for an injunction based on its failure to prove irreparable harm, based partly on the defendant keeping meticulous records of transactions so financial damages could readily be calculated at a later time. Separately, this cutting-edge issue formed the basis of Entertainment Law Initiative Writing Competition runner-up Sarah Abelson's essay, "An Emerging Secondary Market For Digital Music: The Legality Of ReDigi And The Extent Of The First-Sale Doctrine."

On Feb. 14 streaming broadcast-television service Aereo announced its $12 per month plan and March 14 launch in the New York area, as well as the fine-point legal arguments regarding why the service's backers believe they can beat accusations of signal piracy. Each user is required to be a New York resident, is to be served by their own dedicated antenna, and their content will be stored on their own dedicated remote-DVR digital storage space in the cloud. Founder and CEO Chet Kanojia said, "We are building a transformative business and there will be challenges."

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ GRAMMY.com and sign up for Advocacy Action E-lerts.

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